Preliminary Injunction Issued in ACORN Bill of Attainder Case.

Dec 12 2009 Published by under Misc

Earlier this evening, Judge Nina Gershon issued a preliminary injunction barring the government from enforcing a law that bars any Federal money from going to the controversial community group ACORN, or any of ACORN's "affiliates, subsidiaries, or allied organizations". Gershon's ruling will remain in effect while ACORN's lawsuit challenging the law is active.

Predictably enough, the decision has sparked an epidemic of exploding Conservative heads, with Representative Darrell Issa (R-CA) leading the charge:

“On the same day that ACORN’s violation of Delaware state lobbying laws was revealed, a liberal, Clinton-appointed activist Judge has ruled to usurp the prerogatives and authority of the United States Congress. This left-wing activist Judge is setting a dangerous precedent that left-wing political organizations plagued by criminal accusations have a constitutional entitlement to taxpayer dollars. The Obama Administration should immediately move to appeal this injunction.”

There are already others on the right expressing outrage, and there will undoubtedly be more as word of the ruling spreads. It's inevitable that others will parrot Issa's misrepresentation of the ruling, probably very soon, and probably in multiple mainstream media outlets.

I'm less confident that those same media outlets will actually take the time to inform their audience about what the judge's ruling actually does and doesn't do, say, and mean. Since all of those things are important to understanding what's actually going on, it might be a good idea for us to look at them.

What the ruling does:

The preliminary injunction puts the law on hold for the duration of the lawsuit. The federal government cannot enforce the law, which means that the federal government cannot bar ACORN from receiving money. This means that the groups affected by the law will be allowed to continue working on contracts that it had already signed, contracts that had been awarded to those groups but which were put on hold following the bill's passage will move forward, and government agencies will review funding applications from the groups using the same standards that are applied to other applicants.

What the ruling does not do:

This ruling does not actually force the government to give any money to ACORN that they have not already committed. The ruling allows ACORN to apply for new or renewed grants and contracts from federal agencies, but it does not force the government to approve those applications, and it does not bar the government from denying the applications. It simply requires that the applications be evaluated on their merits, and not discarded simply because Congress doesn't like the group that submitted the application.

What the ruling says:

The ruling says that the judge thinks that it is likely that as the case moves forward, ACORN will succeed in showing that the law is an unconstitutional bill of attainder. It indicates that the judge was not impressed with the government's argument that Congress was simply trying to protect the public's money from possible fraud and waste.

What the ruling does not say:

And this part is actually very important to understand:

The ruling does not say that ACORN did anything wrong, and it does not say that ACORN did nothing wrong. ACORN's actual conduct is not at all relevant in this case, so it was not examined in any detail in the ruling.

What the ruling means:

In practical terms, this ruling means that if the government plans on continuing to contest ACORN's claim, they've got a lot of ground to catch up. A preliminary injunction is only granted if the judge - who is almost certainly going to be the same judge who continues to hear the case - believes that the party that is requesting the injunction is likely to succeed on the merits of the case.

What the ruling does not mean:

This ruling does not actually mean that ACORN has a constitutional right to your tax dollars. It means that Congress does not have the right to bar ACORN from receiving money from the federal government that they've already earned through fulfilling contractual obligations, and it means that Congress does not have the right to unilaterally decide to punish ACORN for alleged wrongdoing by barring them from applying and competing for additional contracts.

There are procedures in place for suspending contracts and barring contractors from receiving new ones when it has been shown that fraud or other illegal activities have occurred. The ruling does not prohibit the government from using those procedures to bar ACORN from receiving funds.

Bottom Line:

IANL, but there was absolutely nothing in the ruling that surprised me. Congress has never - as far as anyone can tell - passed a law barring a single named organization or group of organizations from receiving any federal money before. In doing that, they completely bypassed an extensive series of regulations that are designed to protect the public from corrupt contractors while simultaneously extending contractors due process protections. Along the way, they littered the legislative history of the bill with many different statements from many different elected officials, all of which indicated that Congress wanted to punish a group that they believed to be corrupt. Under the circumstances, it's hardly surprising that a federal judge believes that ACORN is likely to succeed in proving that this was an unconstitutional bill of attainder.


Surprisingly, a lot of people - including the Associated Press, which really, really, really should know better - appear to believe that the judge ruled that the law is unconstitutional. That is not the case. The judge ruled that she believes it is likely that ACORN will be able to show that the law is unconstitutional, and that they will be irreparably harmed by the law if it is enforced. That combination meets the requirements for a preliminary injunction, so the law is on hold while ACORN attempts to prove its case. The government, however, still has a chance to show that the law is constitutional.

10 responses so far

  • BaldApe says:

    It is amazing how scared all these Macho Big-talking Republicans are over something as little as an ACORN, huh?
    Seriously, if there is wrongdoing, make actual accusations. As you said, there are procedures to follow.
    Or, in Cowboy words the right would be proud of, "Put up or shut up."
    But see that's boring, and doesn't excite the base nearly enough.

  • Beachbum77979 says:

    Wow, the Congress by a majority vote in both houses, a majority of Congress people being Democrats, passed an unconstitutional law forbiding payment to ACORN in violation of established contracts. I'd agree with the Democrats on this one, except that Constitutional law was violated. What a screw up the Congress did on this one. It will cost us all a lot of money to resolve.
    As stated in the post, there are legal remedies. Bills of attainder to circumvent due process are not allowed under the Constitution. I think a better path would have been to get an injunction not allowing payments to an organization with allegedly improper and possibly fraudulent practices in the areas of voter registration and alleged misuse of public funds until the issues are resolved in open court. If ACORN can be proven to have violated their contracts by violating statute, they should be taken to court, not attainted by Congress. Payments should be stopped by injunction if there is reanonable cause to proceed with litigation.
    It took a while looking over the bill to find the ACORN provision. First thing I saw was the payment to Victoria Reggie Kennedy. One hundred seventy four thousand dollars. If she needs that money, I'd agree, give it to her because of her late husband's service. No money for funeral expenses or something, sure, let's help her out. Somehow, I don't see this issue as something that needs Congressional action though. Things get scarier after that..."For Office of the Sergeant at Arms and Doorkeeper, $70,000,000."..."Sec. 1. Effective on and after October 1, 2009, each of the dollar amounts contained in the table under section 105(d)(1)(A) of the Legislative Branch Appropriations Act, 1968 (2 U.S.C. 61-1(d)(1)(A)) shall be deemed to be the dollar amounts in that table, as adjusted by law and in effect on September 30, 2009, increased by an additional $50,000 each."...I could go on and on about this.
    I don't think the bill of attainder they passed was the only problem with H.R.2918. I guess that more than one in a million actually do read the actual text of proposed legislation. Unfortunately, we have a higher percentage of lawyers than that. Now, we have to pay a bunch of lawyers and judges to evaulate claims by ACORN that they should be paid in the interim instead of the opposite.
    It's not hard for me to understand why ACORN wants to continue. It's not hard for me support their right to their day in court. It is hard, however, for me to understand why they have such support given the allegations against them. Not that allegations are convictions, and I do believe in the principle of innocent until proven guilty. But given probable cause, people get detained. I think a full Congressional investigation should be in the budget. But that was not in H.R.2918.
    I'd advise people to neither idolize or demonize people. If you care to demean others, I recommend not using terms like idiot, moron or imbicile unless you are old enough to have learned them when they were clinical definitions. In the USA we have free speech though. Inflamitory words will be used. I look at the actions of people rather than their words when I can. Sometimes, words do get me worked up. Especially when given the force of federal law.
    If the Democrats, holding the majority in both houses of Congress at the time this bill passed, wanted to continue ACORN funding, I underestimated them. Pass a funding bill with a little unconstitutional provision. Pretty clever, but Congress has been pretty clever for quite a while when looking after their own self interests. Maybe, as BaldApe said, Republicans are scared of something as small as ACORN. I'm neither Republican or Democrat. Down here, we have to vote for actual candidates. If we feel aligned with one party, and there is no candidate in that party for a local election, we have to vote in the primary for the other party. But scared of ACORN? Most people I know understand that corrupt organizations like ACORN will be found out, prosecuted and dissolved. ACORN gets to get payments because of a Congressional error, for now. Litigation can bring the money back. I'm not worried.
    Labore pro Pacem.....Beach

  • Grace Suarez says:

    Thank you for an intelligent and dispassionate analysis of the preliminary injunction. Wish all "pundits" were half as smart as you are.

  • konrad_arflane says:

    It's sad when the public apparently doesn't know the meaning of "preliminary". OK, so it's five whole syllables, but still, this isn't exactly a triumph of literacy.

  • llewelly says:

    Not that allegations are convictions, and I do believe in the principle of innocent until proven guilty. But given probable cause, people get detained. I think a full Congressional investigation should be in the budget. But that was not in H.R.2918.

    The people making those allegations do not have any evidence that ACORN engaged in fraudulent voter registration. All they have are distortions and delusions. And that's why H.R. 2918 does not include a budget for a full congressional investigation. They know there is nothing there to find.

  • steve says:

    another great post. why is it the major papers can't be bothered to give enough details on stories like this one to get past the sound bites? Keep at it.

  • acai says:

    I don't think the bill of attainder they passed was the only problem with H.R.2918. I guess that more than one in a million actually do read the actual text of proposed legislation.

  • atheismisdeadathe says:

    you really need to keep comment moderation on your blasphemy...

  • SteveG23 says:

    You say:

    Congress has never - as far as anyone can tell - passed a law barring a single named organization or group of organizations from receiving any federal money before."

    Have you never heard of the Anti-Pinkerton Act of 1883? It's still the law: 5 U.S.C. 3108

  • eddie says:

    Am I the only one to spot the basic contradiction bewteen "I believe in innocent until proven guilty" and "there should be an injunction to stop funding until the case is settled in court"?
    It's hard to avoid using the words moron, idiot and imbecile in response to that.